Powertel Communications (Pvt) LTD V Faith Kaitano

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H//16
HELD AT HARARE 18 FEBRUARY 2016
CASE NO
JUDGMENT NO LC/H//16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H//16

HELD AT HARARE 18 FEBRUARY 2016			CASE NO LC/H/635/15

& 22 APRIL 2016

In the matter between:

POWERTEL COMMUNICATIONS (PVT) LTD 			Appellant

And

FAITH KAITAN0						Respondent

Before The Honourable L M Murasi, Judge

For Appellant			Mr T Nyamasoka (Legal Practitioner)

For Respondent		Mr B Magogo (Legal Practitioner)

MURASI, J:

Appellant employed the respondent.  Respondent’s contract of employment was terminated by the giving of three months’ notice.  Respondent was aggrieved by this turn of events and the matter ended up in arbitration.  The arbitrator ordered respondent’s reinstatement after making a finding that the termination was unlawful.  Appellant is contesting the finding of the arbitrator.

Appellant’s grounds of appeal are as follows:

The arbitrator erred at law by failing to determine the matter within the four corners of the papers before him as submitted by the parties and going beyond the scope of the submission to arbitration constituting a misconduct on the part of the arbitrator.

The arbitrator erred at law by failing to appreciate that (the)  Labour Court judgments create precedents binding on inferior tribunals and are not merely persuasive thereby misdirected himself in departing from the reasoning stated in the authority before him.

The arbitrator failed in law in failing to appreciate that the provisions of S.I. 1 of 2008 are subject to consistency with (the) labour Act thereby erred in concluding that appellant did not comply with legislative provisions and that failure to give reasons renders the termination unlawful.

The arbitrator erred at law in concluding that section 12 (c) of the Labour Act as read with section 3 of S.I. 186 of 2003 are applicable in the instance.

Mr Nyamasoka for the appellant stated that respondent’s contract of employment

was terminated on notice and this was in terms of the law.  It was further stated that the arbitrator had erred in making a finding which was based on an issue not raised by the parties and should have confined himself on the evidence given by the parties.  It was further submitted that the arbitrator had placed reliance on S.I. of 2008 which he had introduced and in that vein made an error at law.  Mr Nyamasoka submitted even if reliance was to be made to S.I. 1 of 2008, the instrument uses the word, “may” and is thus not a peremptory provision.  It was submitted that the contract was terminated on notice as clearly provided in the contract of employment and the demand for reasons therefor falls away.  It was argued by Mr Nyamasoka that a judgment had been issued by the Labour Court which confirmed the employer’s right to terminate a contract on notice in a no-fault situation.  However the arbitrator had made a finding that the judgment was merely persuasive.  It was argued that the judgment was indeed binding on the arbitrator and thus the arbitrator had made a fundamental error at law and had he followed that decision he would not have arrived at a decision which was clearly wrong.  Mr Nyamasoka further submitted that the arbitrator had clearly failed to interpret the provisions of the Labour Act as dismissal and termination of contract were clearly two distinct issues.  It was submitted that a statute is not viewed as having altered the common law unless it clearly states so in its provisions.  It was argued that the arbitrator should clearly have confined himself to the issues placed before him and could not be seen to be making a case for the other party.  Mr Nyamasoka stated that if the arbitrator had found that Statutory Instrument 1 of 2008 was applicable, he should have called the parties to address the tribunal on the issue.

Mr Magogo for the respondent stated that he abided by the documents filed of record.  He further stated that the first ground of appeal alleged that the arbitrator had determined issues which were outside the Terms of Reference and that this raised a ground for review as it related to a procedural error.  It was further stated that as far as reliance to other legal instruments was concerned, there was no law which prohibited the arbitrator from relying on those instruments in making a decision.   As far as the decision in the Zuva case was concerned, it was argued that in that case no application of the Collective Bargaining Agreement was considered by that court as a CBA is binding upon both employer and employee.  Mr Magogo further submitted that the judgment was therefore distinguishable.  He however conceded that he did not agree with the finding by the arbitrator that the Labour Court judgment was merely persuasive.  Mr Magogo also stated that he did not agree with the sentiments of the arbitrator as regards the difference between dismissal and termination of contract.  It was further submitted that the Labour Act, having given employers and employees to enter into CBAs, those agreements should be followed as they were the result of negotiations between the parties and thus the appellant was obliged to comply with the provisions of S.I. 1 of 2008 which required that it give reasons for the termination.  Mr Magogo further submitted that the termination of respondent’s contract of employment was unlawful and the arbitrator was correct and the appellant ought to reinstate the respondent.

I wish to address a preliminary issue raised by the respondent in respect of appellant’s first ground of appeal.   Respondent alleges that appellant is raising a procedural issue which ought to have been addressed by way of review.  Appellant is clearly stating that the arbitrator went at a tangent and did not consider issues presented before him, resulting in erroneous decision.  Probably the use of the word “misconduct” in the ground of appeal is misleading.  However, the court understood the ground of appeal to be one stating that the arbitrator was in error in going out to find issues not presented to him and thereby making an error in the decision that he arrived at.

Generally, appeals are determined because they are of substantial importance to one or both parties and not that they raise or involve interesting points of law and usually courts are reluctant to be drawn to deal with matters which are of academic interest.  This point is raised as respondent’s counsel had intimated that as the Zuva case had not dealt with the issue of a CBA in its decision, the court should express an opinion on the matter.  I am of the view that the court is enjoined to decide the matter on the record.  In casu, appellant has lodged an appeal on the decision of the arbitrator and listed the grounds upon which the decision should be vacated and the court is enjoined to consider those in light of the decision of the arbitrator.

The arbitrator was asked to determine whether the termination of respondent’s contract was lawful.  Evidence was presented to the arbitrator that the appellant had embarked on a restructuring exercise and that respondent was one of those who would be affected by such an exercise.  Whilst this one still going on, respondent received a letter purportedly terminating her contract of employment giving her three months’ notice.  Appellant stated that this was in terms of contract of employment and the Labour Act.  Appellant further addressed the tribunal and stated that the Labour Court had since made a determination on the matter and that the judgment was binding upon the arbitrator.  It is common cause that the arbitrator chose to go classify the Labour Court decision as persuasive and not binding.  Respondent’s counsel conceded that the decision of the arbitrator in this respect was incorrect.  The first ground of appeal alleges that the arbitrator did not consider the evidence adduced resulting in him making an erroneous decision.  If the arbitrator had considered the decision of the Labour Court in the Zuva case he would have arrived at the conclusion that the termination of the contract of employment was indeed lawful.  That should have been the end of the matter.  The arbitrator however raised the issue that the appellant had embarked on a restructuring exercise and therefore the proper way of terminating the contract was by way of retrenchment.  The arbitrator had this to say:

“I am persuaded to believe that the provisions of S 12 (c) of the Labour Act and S 3 of S.I. 186/2003 are explicit intention of the of the Legislature to after the common law.”

Contrast this finding with that of the Supreme Court in the Zuva case at page 5 of the cyclostyled judgment:

“As I have already stated, it is common cause that once upon a time both the employer and the employee had a common law right to terminate an employment relationship on notice.  That common law right in respect of both the employer and the employee can only be limited abolished or regulated by an Act of Parliament or a statutory instrument that is clearly intra vires an Act of Parliament.”

Further on page 6:

“It is clear a well-established principle of statutory interpretation that a statute cannot effect an alteration of the common law without saying so explicitly.”

It is my view that the arbitrator’s finding that there is an alteration to the common law in section 12 C and section 3 of S.I. 186 of 2003 suffers from the deficiency that there is no explicit alteration in the provisions.  That finding is therefore erroneous.  The same fatality also must visit the argument by Mr Magogo that the decision in the Zuva case did not apply to a situation where a CBA applied.  The CBA referred to is a Statutory Instrument and as stated by the Learned Chief Justice, such instrument must explicitly state that the common law has been ousted.  The second issue is that the instrument must be intra vires an Act of Parliament.  In casu, the right to terminate a contract of employment on notice is thus at common law and section 12 C (4) regulates the exercise of that right.  Does section 3 of S.I. 186/2003 explicitly oust that right?  It is clear that the answer should be in the negative.  It is my view that the above determination deals with appellant’s first three grounds of appeal.

The arbitrator makes the following finding:

“However, given the proximity of last discussion of the restructuring exercise and the dismissal of the employee, the tribunal concludes that the dismissal was as a result of the proposed restructuring exercise.”

The arbitrator was indeed buttressing his finding that the appellant should have gone the retrenchment route.  The arbitrator should have taken note of precedent in this regard.  MALABA JA (as he then was) had this to say in Luke Chirasasa & Others v Nhamo N O & Fidelity Life Assurance of Zimbabwe (Pvt) Ltd s 135/02 at p 20 of the cyclostyled judgment:

“The appellants perhaps failed to appreciate that a contract of employment cannot remain static throughout the whole of its existence regardless of the changes in the fortunes of the business.  Refusal to accept a change in the terms and conditions of employment necessitated by the commercial interests of a business may be a good enough reason for terminating a contract of employment on notice.”

In light of the above observations, it is my view that it would amount to an injustice to allow the arbitral award to stand.  The appeal has merit and must be allowed.

The court makes the following order:

The appeal is allowed.

The arbitral award of Honourable Matongera be and is hereby set aside.

The termination on notice of respondent’s contract of employment be and is hereby upheld.

Each party to bear its own costs.

Atherstone & Cook, appellant’s legal practitioners

Makuwaza & Magogo Attorneys, respondent’s legal practitioners